Brooks v. U.S. Bank, N.A.

Filing 62

ORDER by Judge Edward M. Chen Granting 48 Plaintiffs' Motion for Preliminary Approval of Class Action Settlement. (Attachments: # 1 Exhibit Notice, # 2 Exhibit Estimated Payment Form) (emcsec, COURT STAFF) (Filed on 2/12/2014)

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Eve H. Cervantez (SBN 164709)
Laura S. Trice (SBN 284837)
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Tel. [phone]
Fax [phone]
Email: [e-mail]
Harvey Sohnen (SBN 62850)
Patricia Kelly (SBN 99837)
LAW OFFICES OF SOHNEN & KELLY
2 Theatre Square, Suite 230
Orinda, CA 94563
Tel. [phone]
Fax [phone]
Email: [e-mail]
Attorneys for Plaintiffs
CYNTHIA BROOKS and JACOB SWOYER
and the prospective class

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UNITED STATES DISTRICT COURT FOR THE

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NORTHERN DISTRICT OF CALIFORNIA – SAN FRANCISCO DIVISION

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CYNTHIA BROOKS, and JACOB SWOYER Case No. C12-4935 EMC (JSC)
on Behalf of Themselves and All Others
Similarly Situated,
(AMENDED PROPOSED) ORDER
GRANTING PRELIMINARY APPROVAL
Plaintiffs,
OF CLASS ACTION SETTLEMENT
v.

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U.S. BANK, N.A. and DOES 1 through 10
inclusive

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Defendants.

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

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Recitals:

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This matter came on for hearing on February 6, 2014, at 1:30 p.m. in Courtroom 5 of the

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above-captioned court on Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement.
The Court, having fully reviewed Plaintiffs’ Motion for Preliminary Approval of Class

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Action Settlement, the supporting Points and Authorities and Declarations filed in support thereof,

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including the Joint Stipulation of Class Action Settlement and Release (“Settlement Agreement”),

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the Notice of Settlement (“Notice”), and the Estimated Payment Form And Instructions To

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Challenge Dates Of Employment (“Estimated Payment Form”), hereby makes the following findings

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and orders:

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Findings:

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The Court finds on a preliminary basis that the Settlement Agreement, which is attached to

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the Declaration of Harvey Sohnen in Support of Plaintiffs’ Motion for Preliminary Approval of

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Settlement, as Exhibit “1” and is incorporated in full by this reference and made a part of this Order,

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appears to be within the range of reasonableness of a settlement which could ultimately be given

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final approval by this Court. The Court notes that Defendant has agreed to create a common fund of

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$1,900,000, to pay (a) settlement payments to Class Members who do not validly opt-out; (b)

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enhancement payments not to exceed $7,500 and $2,500 respectively to Plaintiffs Cynthia Brooks

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and Jacob Swoyer; (c) payment to State of California, Labor and Workforce Development Agency

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of $90,000; and (d) attorney’s fees not to exceed $633,333, and actual costs incurred, not to exceed

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$20,000. The employer’s share of payroll tax and costs of administration and notice (other than the

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costs of a second round of distribution of settlement funds) are to be paid by Defendant outside of

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the common fund.

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a.

The Court finds that provisional certification of the class for settlement

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purposes is appropriate. Certification under this order is for settlement purposes only and shall

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not be construed as an admission by Defendant that this action is appropriate for class treatment

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for litigation purposes, and entry of this Order is without prejudice to the rights of Defendant to

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

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oppose certification (and/or seek decertification or modification of any class) should the proposed

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settlement not be granted final approval.

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b.

The Settlement Class shall be defined as follows: In-Store Banker 1, In-

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Store Banker 2, Senior In-Store Banker 1, and/or Senior In-Store Banker 2 at Defendant’s In-

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Store Locations in California at any time during the period between September 30, 2010 and the

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date of entry of this Order.

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c.

The Court finds that Altshuler Berzon LLP and the Law Offices of Sohnen

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& Kelly are experienced in class action litigation and that Plaintiffs are adequate class

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representatives.

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The Court also approves Dahl Administration to act as the class action

administrator (“Settlement Administrator”).
d.

The Court finds that the Notice and Estimated Payment Form, which are

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attached hereto as Exhibits “1” and “2”, respectively, comport with all constitutional requirements

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including those of due process.

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e.

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The Court further finds that the proposed Notice to the class adequately

advises the class about:

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(1)

The class action;

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(2)

The terms of the proposed settlement, the benefits available to each Class

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Member, and proposed fees and costs to Class Counsel;
(3)

Each Class Member's right to challenge their dates of employment on the

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estimated payment form, and to object and/or to opt out the settlement, and

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the timing and procedures for doing so;

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(4)

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The provisional and conditional certification of the class for settlement
purposes only;

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(5)

Preliminary court approval of the proposed settlement; and

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(6)

The date of the Final Approval hearing as well as the rights of members of the

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class to file documentation in support of or in opposition to and appear in

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connection with said hearing.

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

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f.

The Court further finds that the mailing to the last known address for members

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of the class, as specifically described within the Settlement Agreement, constitutes reasonable notice

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to Class Members of their rights with respect to the class action and proposed settlement.

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Based on the above, the Court hereby makes the following Orders:

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1.

The Court orders the preliminary approval of this litigation as a settlement class

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action and provisionally orders certification of the settlement class defined as: In-Store Banker 1,

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In-Store Banker 2, Senior In-Store Banker 1, and/or Senior In-Store Banker 2 at Defendant’s In-

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Store Locations in California at any time during the period between September 30, 2010 and the date

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of entry of this Order, who do not validly opt out of the settlement.

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2.

The Court orders that the Settlement appears to be within the range of reasonableness

of a settlement which could ultimately be given final approval by the Court.
3.

The Court orders the appointment of Altshuler Berzon LLP and the Law Offices of

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Sohnen & Kelly as Class Counsel and orders the appointment of Cynthia Brooks and Jacob Swoyer

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as the class representatives. The Court further approves and appoints Dahl Administration to act as

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the class action administrator.

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4.

Defendant shall, by February 26, 2014, provide the Settlement Administrator with a

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list of all Settlement Class Members, their last known addresses, telephone numbers, Social Security

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numbers and such records as are necessary to compute distribution amounts.

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5.

The Settlement Administrator shall mail the Notice and Estimated Payment Form

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(Exhibits 1 and 2 hereto) to Settlement Class Members on the list provided by Defendant, no later

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than March 18, 2014.

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6.

The Court orders that no later than May 29, 2014, a declaration shall be filed with the

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Court by the Settlement Administrator stating that the Notices and Estimated Payment Forms were

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mailed and re-mailed to the Class Members in accordance with the Settlement Agreement.

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7.

The Court orders that any challenge to dates of employment form must be

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postmarked no later than sixty (60) calendar days after the Notice is initially mailed to the class, that

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is, by May 19, 2014 and must be received by the Settlement Administrator to be valid.

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

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8.

The Court orders that any request for exclusion must be postmarked no later than

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sixty (60) calendar days after the Notice is initially mailed to the class, that is, by May 19, 2014 and

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must be received by the Settlement Administrator to be valid.

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9.

The Court orders that any Class Member may object to the Settlement Agreement.

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Any objection must be in writing, and mailed to the Settlement Administrator. Such objection shall

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include the name and address of the Class Member and the basis of the objection. To be timely, the

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objection must be postmarked no later than sixty (60) calendar days after the Notice is initially

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mailed to the class, that is, by May 19, 2014. Objections not previously filed in writing in a timely

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manner will not be considered. All objections or other correspondence must state the name and

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number of the case, which is Cynthia Brooks et al. v. U.S. Bank, N.A.., Case No. C12-4935 EMC.
10.

The Court orders that the Final Approval Hearing shall be held before the

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undersigned on June 12, 2014, at 1:30 p.m. in Courtroom 5 of the above-entitled court, to consider

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the fairness, adequacy and reasonableness of the proposed settlement preliminarily approved by this

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Order, and to consider the motion of Class Counsel for an award of reasonable attorney’s fees and

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costs, the named Plaintiffs/Class Representatives’ enhancements, administration costs and payment

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to the Labor Workforce and Development Agency.

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11.

The Court orders that any party to this case, including any class member, in person or

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by counsel, may be heard, to the extent allowed by the Court, in support of, or in opposition to, the

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Court's determination of the good faith, fairness, reasonableness and adequacy of the proposed

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settlement, the requested attorney’s fees and costs, the requested named Plaintiffs’ enhancements,

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and any order of final approval and Judgment regarding such settlement, fees, costs and

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enhancements; provided, however, that no person, except Class Counsel and counsel for Defendants

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shall be heard in opposition to such matters unless such person has complied with the conditions set

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forth in the Notice to the Class.

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12.

The Court orders that all briefs regarding the settlement shall be served and filed in

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accordance with the following briefing schedule: All briefs and materials in support of an order of

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final approval shall be filed with this Court no later than May 8, 2014, except that the motion for

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

1

attorney’s fees and costs shall be filed no later than March 18, 2014, and noticed for the date of the

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Final Approval hearing. Any objections to the settlement shall be filed and served in accordance

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with this Order and the Settlement Agreement. Any opposition to the motion for attorney’s fees and

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costs shall be filed and served than no later than sixty (60) calendar days after the Notice is initially

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mailed to the class, that is, no later than May 19, 2014. Response briefs, if any, including opposition

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to objections, shall be filed with this Court no later than May 29, 2014.

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The Court orders that upon final approval, assuming no objections, or upon dismissal

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or resolution of objections, all class members, other than opt outs, and their successors shall

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conclusively be deemed to have given full releases of the Released Claims (as defined in the

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Settlement Agreement) and as modified by this Order and all class members (other than opt-outs)

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and their successors, shall be permanently enjoined and forever barred from asserting any Released

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Claims as described by the Settlement Agreement.

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13.

The Court orders that if for any reason the Court does not execute and file an order of

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final approval and judgment, or if such a final approval order is reversed, the Settlement Agreement

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and the proposed settlement which is the subject of this Order and all evidence and proceedings had

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in connection therewith, and the provisional certification of the class, shall be without prejudice to

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the status quo ante rights of the Parties to the litigation as more specifically set forth in the

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Settlement Agreement.

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14.

The Court orders that the Settlement Agreement shall not be construed as an

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admission or evidence of either liability or the appropriateness of class certification in the non-

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settlement context, as set forth in the Settlement Agreement.

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15.

The Court orders that, pending further order of this Court, all proceedings in this

matter except those contemplated herein and in the Settlement Agreement are stayed.
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The Court orders that Class Counsel submit a proposed Judgment in connection with

the Motion for Final Approval of Class Action Settlement as set forth in the Settlement Agreement.
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The Court expressly reserves the right to adjourn or continue the Final Approval

Hearing from time to time without further notice to the class members.
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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC

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18.

The Court makes the following additional orders:

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(a)

page 21, paragraph 70, line 9 of the Settlement Agreement is modified to state

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“similar claims” instead of “those”.
(b)

The Court approves the parties’ designation of the California Rural Legal Assistance

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Foundation as cy pres beneficiary, finding that it meets the criteria set forth in Dennis v Kellogg Co.

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697 F. 3d 858, 865-866 (9th Cir. 2012).

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IT IS SO ORDERED.

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__________________________________
ERED
HONORABLE EDWARD M. CHEN
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IT IS S
U.S. DISTRICT JUDGE

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February 12, 2014
Dated: ______________________

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(AMENDED PROPOSED) ORDER GRANTING PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

CASE NO. C12-4935 EMC